The Mental Capacity Act 2005 is a law for people who cannot make their own decisions about all or some parts of their lives. This could be because of a learning disability, an illness or brain injury, mental health problems or for other reasons. 

The Mental Capacity Act also allows you to make Lasting Powers of Attorney which are a way to plan for the future when you may not be able to make your own decisions. 

What is a Lasting Power of Attorney?

A Lasting Power of Attorney (LPA) is a legal document that you can use to nominate someone you trust (an Attorney) to make decisions on your behalf in the future, either when you no longer wish to make the decisions or if you lack the mental capacity to make decisions yourself. These decisions can be about things such as personal care as well as about your finances and property. 

Your Attorney could be a friend, relative, or a professional such as a Solicitor and you can appoint up to four people.  

If you decide to appoint more than one person you can decide how they will work together. They can work together all of the time and do everything together (known as “jointly”), or they can work together some of the time and independently at other times (known as “jointly and severally”). You can also name a reserve Attorney should your chosen Attorney be unable to act. 

The Attorney must act in your best interests at all times, which means they must consider your needs and wishes as best as possible and not use their position to gain advantage. Additionally, the Attorney must keep your money separate from theirs. It is therefore an important role and one that the person chosen has to agree to take on.

Types of LPA

Property and Affairs LPA

This document covers decisions such as paying your bills, collecting any benefits, making and selling investments and buying and selling property. You can appoint your Attorney to assist you whilst you still have capacity (e.g. if you want to take a step back from dealing with your affairs) as well as when you lack capacity. 

The document is useful if you start to find it burdensome to deal with your affairs, find it difficult to get about or talk on the telephone, or you might be out of the country for long periods of time.

This type of LPA does not allow the person you have chosen to make decisions about your personal welfare and a separate LPA is required for such decisions. 

Health and Welfare LPA

This document covers significant decisions such as medical treatment you may need, where you might live (either in your own home or in care) and life sustaining treatment. You can also give your Attorney(s) the power to make decisions about day-to-day aspects of your personal welfare, such as your diet, your dress, or your daily routine. 

The document is more limited in that these personal decisions can only be made your Attorney when you lack the mental capacity to make them for yourself, for example if you are unconscious or because of the onset of a condition such as dementia.

The Attorney(s) you appoint will only be able to use this power once the LPA has been registered and provided that you cannot make the required decision for yourself. 

This type of LPA does not allow your Attorney(s) to make decisions about your property and affairs and a separate LPA is required for such decisions.

Safeguards

Letting someone make decisions on your behalf can feel like a big step, but there are numerous safeguards in place to protect you when you make a Lasting Power of Attorney. 

Firstly, a Lasting Power of Attorney can only be used after it is registered with The Office of The Public Guardian (OPG). This is to make sure that it is set up properly and is legal. If the OPG have any concerns about the document, they will not register it. 

Secondly, in addition to your Attorney, various other people are referred to in the document. These include:

• A named person – You can notify people that you are making an LPA and they have the right to object to the registration of the document if they have concerns about it or the attorneys. 
• A Certificate provider – This is either a professional or someone selected by you to confirm that you understand the LPA and that you are not under any pressure to make it. 
• A Witness – A Witness is someone who signs the LPA form to confirm that they witnessed you signing and dating the form or the Attorney/s signing and dating the LPA form. They should also be happy that you understand the LPA and that you are not under any pressure to make it.

Assessing capacity

No one can assume that you cannot make a decision for yourself and no one can assume you lack capacity because of how old you are, how you look or how you act. They also cannot assume you are unable to make a decision yourself if you want to make an unwise decision, you have a disability, you cannot make more complicated decisions, or you have not been able to make decisions like that in the past.

If your Attorney needs to make a decision for you, they must take every step to be sure that you cannot make a decision yourself before they act.

If your Attorney does have to make a decision for you, they must consider what is in your best interests by listening to what you want, asking people who know you and making sure you are involved. 

How Williamsons can help

We can assist you with preparing and submitting the LPA forms. If you feel you will require more specialist assistance in the future, we can also be appointed to act as professional Attorneys for Property and Financial Affairs.